Additional Unencumbered Properties. If after the Effective Date, the Borrower desires that any additional Property become an Unencumbered Property and therefore included in calculations of the Unencumbered Property Value, the Borrower shall so notify the Administrative Agent in writing (as referred to in this subsection, a “Notice of Additional Unencumbered Property”). Except as otherwise provided in the immediately following subsection (c), no Property will become an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent the following, in form and substance satisfactory to the Administrative Agent (unless waived by the Requisite Lenders): (i) a description of such Property, such description to include the age, location and size of such Property; (ii) an operating statement with respect to such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; provided, that with respect to any period such Property was not owned by a Loan Party, such information shall only be required to be delivered to the extent reasonably available to the Borrower; (iii) a pro forma operating statement or an operating budget for such Property with respect to the current and immediately following fiscal years; (iv) a budget for capital expenditures for the immediately following 12-month period showing funding sources acceptable to the Administrative Agent; and (v) a Compliance Certificate showing pro forma compliance with the covenants set forth in Section 10.1., in each case, after giving effect to the addition of such Property in the calculations of the Unencumbered Property Values; and (vi) such other information the Administrative Agent may reasonably request in order to evaluate the Property including, without limitation, the following: (1) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy; (2) solely with respect to a property located in an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent; (3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property; (4) copies of all Property Management Agreements relating to such Property; and (5) evidence that the insurance required by Section 8.5. is in effect and, to the extent applicable, covers such Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections (b)(i) through (vi), the Administrative Agent will send such notice, reports and documents to each of the Lenders. Within 10 Business Days of the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and other reports and documents set forth in subsections (b)(i) through (vi), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 2 contracts
Samples: Term Loan Agreement (DiamondRock Hospitality Co), Term Loan Agreement (DiamondRock Hospitality Co)
Additional Unencumbered Properties. (a) If after at any time the Effective Date, the Borrower desires that any additional Property become Company intends to include as an Unencumbered Eligible Property and therefore included in calculations any Proposed Real Estate, prior to any such inclusion the Company shall notify the holders of the Unencumbered Property Value, the Borrower shall so notify the Administrative Agent Notes in writing of its desire to include such Proposed Real Estate as an Unencumbered Eligible Property.
(as b) The notice referred to in this subsectionclause (a) above shall include (i) if such inclusion is to occur prior to the Investment Grade Release, a list of each Subsidiary that is (or upon the acquisition or leasing thereof or upon the acquisition of the owner or lessee thereof will be) the Direct Owner or an Indirect Owner thereof and (ii) if such inclusion is to occur on or after the Investment Grade Release, a list of each Subsidiary of the Company (if any) that is (or upon the acquisition or leasing thereof or upon the acquisition of the owner or lessee thereof will be) the Direct Owner or an Indirect Owner thereof and will at the time such Proposed Real Estate is to be included as an Unencumbered Eligible Property be a borrower or guarantor of, or otherwise obligated in respect of, any Recourse Indebtedness (each such Subsidiary under clause (i) or (ii) (including for the avoidance of doubt any Joint Venture Partner) being referred to hereinafter as a “Notice of Additional Proposed Unencumbered PropertyProperty Subsidiary”). Except as otherwise provided in the immediately following subsection .
(c)) With respect to each Proposed Unencumbered Property Subsidiary, no Property will become at least 10 days (or such shorter period as the Required Holders may agree) prior to the date the applicable Proposed Real Estate is to be included as an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent the following, in form and substance satisfactory to the Administrative Agent (unless waived by the Requisite Lenders):Company shall:
(i) a description of provide the holders with the U.S. taxpayer identification number for such PropertyProposed Unencumbered Property Subsidiary, such description to include the age, location and size of such Property;and
(ii) an operating statement provide the holders with respect to all documentation and other information concerning each such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; provided, that with respect to any period such Property was not owned by a Loan Party, such information shall only be required to be delivered to the extent reasonably available to the Borrower;
(iii) a pro forma operating statement or an operating budget for such Property with respect to the current and immediately following fiscal years;
(iv) a budget for capital expenditures for the immediately following 12-month period showing funding sources acceptable to the Administrative Agent; and
(v) a Compliance Certificate showing pro forma compliance with the covenants set forth in Section 10.1., in each case, after giving effect to the addition of such Property in the calculations of the Proposed Unencumbered Property Values; and
(vi) such other information the Administrative Agent Subsidiary that any holder may reasonably request in order to evaluate comply with their obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(d) At or prior to the time that any Proposed Real Estate that has a Proposed Unencumbered Property including, without limitationSubsidiary as its Direct Owner or Indirect Owner is included as an Unencumbered Eligible Property, the following:
(1Company shall have caused each such Proposed Unencumbered Property Subsidiary to comply with Section 9.7(a) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy;
(2) solely with respect to a property located in an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent;
(3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property;
(4) copies of all Property Management Agreements relating to such Property; and
(5) evidence that the insurance required by Section 8.5. is in effect and, hereof to the extent applicable, covers such Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections (b)(i) through (vi), the Administrative Agent will send such notice, reports and documents to each of the Lenders. Within 10 Business Days of the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and other reports and documents set forth in subsections (b)(i) through (vi), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 1 contract
Samples: Note Purchase Agreement (Empire State Realty OP, L.P.)
Additional Unencumbered Properties. If after the Effective Date, the Borrower desires that any additional Property become an Unencumbered Property and therefore included in calculations of the Unencumbered Property Value, the Borrower shall so notify the Administrative Agent in writing (as referred to in this subsection, a “Notice of Additional Unencumbered Property”). Except as otherwise provided in the immediately following subsection (c), no Property will become an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent the following, in form and substance satisfactory to the Administrative Agent (unless waived by the Requisite Lenders):
(i) a description of such Property, such description to include the age, location and size of such Property;
(ii) an operating statement with respect to such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; provided, that with respect to any period such Property was not owned by a Loan Party, such information shall only be required to be delivered to the extent reasonably available to the Borrower;
(iii) a pro forma operating statement or an operating budget for such Property with respect to the current and immediately following fiscal years;
(iv) a budget for capital expenditures for the immediately following 12-month period showing funding sources acceptable to the Administrative Agent; and
(v) a Compliance Certificate showing pro forma compliance with the covenants set forth in Section 10.1., in each case, after giving effect to the addition of such Property in the calculations of the Unencumbered Property Values; and
(vi) such other information the Administrative Agent may reasonably request in order to evaluate the Property including, without limitation, the following:
(1) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy;
(2) solely with respect to a property located in an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent;
(3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property;
(4) copies of all Property Management Agreements relating to such Property; and
(5) evidence that the insurance required by Section 8.5. is in effect and, to the extent applicable, covers such Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections (b)(i) through (vi), the Administrative Agent will send such notice, reports and documents to each of the Lenders. Within 10 Business Days of the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and other reports and documents set forth in subsections (b)(i) through (vi), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii2.7.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 1 contract
Additional Unencumbered Properties. If after the Effective Date, Date the Borrower desires that any additional Property become an Unencumbered Property and therefore included in calculations of the Unencumbered Property ValueProperty, the Borrower shall so notify the Administrative Agent in writing (as referred to in this subsection, a “Notice of Additional Unencumbered Property”). Except as otherwise provided in the immediately following subsection (c), no Property will shall become an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent all of the following, in form and substance reasonably satisfactory to the Administrative Agent (unless waived in writing by the Requisite Lenders):
(i) an executive summary of the Property including, at a minimum, the following information relating to such Property: (A) a description of such Property, such description to include the age, location location, site plan and size physical condition of such Property;; and (B) the purchase price paid or to be paid for such Property;
(ii) an operating statement with respect to for such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; providedrespects and prepared in accordance with GAAP for the previous three fiscal years, that with respect to any period provided that, if such Property was not owned by the Borrower or a Loan PartySubsidiary for less than three years, such information shall only be required to be delivered to the extent reasonably available to the Borrower and such certification may be based upon the Borrower;’s knowledge and provided further, that if such Property has been operating for less than three years, the Borrower shall provide such projections and other information concerning the anticipated operation of such Property as the Administrative Agent may reasonably request;
(iii) a pro forma operating statement or an operating budget for such Property with respect to the current and fiscal year and, if available, the immediately following fiscal years;year;
(iv) if such Property is located in a budget for capital expenditures for the immediately following 12-month period showing funding sources seismic zone rated 3 or higher, an all assets seismic portfolio report covering all applicable Properties prepared by a firm reasonably acceptable to the Administrative Agent; and;
(v) if such Property is leased under a ground lease, a copy of such ground lease;
(vi) a copy of the most current Xxxxx Travel Research STAR Report available for such Property;
(vii) a Compliance Certificate showing calculating (and evidencing pro forma compliance with with) the covenants set forth in Section 10.1., in each case, . after giving effect to the addition of such Property in the calculations of the as an Unencumbered Property ValuesProperty; andand
(viviii) such other information as the Administrative Agent may reasonably request in order to evaluate the Property including, without limitation, the following:
(1) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering confirm that such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy;
(2) solely with respect to a property located in is an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent;
(3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property;
(4) copies of all Property Management Agreements relating to such Property; and
(5) evidence that the insurance required by Section 8.5. is in effect and, to the extent applicable, covers such Eligible Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” Property unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections required under this subsection (b)(i) through (vib), the Administrative Agent will send make such notice, reports and documents available to each of the Lenders. Within 10 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in subsections required under this subsection (b)(i) through (vib), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 1 contract
Additional Unencumbered Properties. If after the Effective Date, First Amendment Date the Borrower desires that any additional Property become an Unencumbered Property and therefore included in calculations of the Unencumbered Property ValueProperty, the Borrower shall so notify the Administrative Agent in writing (as referred to in this subsection, a “Notice of Additional Unencumbered Property”). Except as otherwise provided in the immediately following subsection (c), no Property will shall become an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent all of the following, in form and substance reasonably satisfactory to the Administrative Agent (unless waived in writing by the Requisite Lenders):
(i) an executive summary of the Property including, at a minimum, the following information relating to such Property: (A) a description of such Property, such description to include the age, location location, site plan and size physical condition of such Property;; and (B) the purchase price paid or to be paid for such Property;
(ii) an operating statement with respect to for such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; providedrespects and prepared in accordance with GAAP for the previous three fiscal years, that with respect to any period provided that, if such Property was not owned by the Borrower or a Loan PartySubsidiary for less than three years, such information shall only be required to be delivered to the extent reasonably available to the Borrower and such certification may be based upon the Borrower;’s knowledge and provided further, that if such Property has been operating for less than three years, the Borrower shall provide such projections and other information concerning the anticipated operation of such Property as the Administrative Agent may reasonably request;
(iii) a pro forma operating statement or an operating budget for such Property with respect to the current and fiscal year and, if available, the immediately following fiscal years;year;
(iv) if such Property is located in a budget for capital expenditures for the immediately following 12-month period showing funding sources seismic zone rated 3 or higher, an all assets seismic portfolio report covering all applicable Properties prepared by a firm reasonably acceptable to the Administrative Agent; and;
(v) if such Property is leased under a ground lease, a copy of such ground lease;
(vi) a copy of the most current Xxxxx Travel Research STAR Report available for such Property;
(vii) a Compliance Certificate showing pro forma calculating (and, unless such Property is being added during the Covenant Relief Period, evidencing compliance with with) the covenants set forth in Section 10.1., in each case, . after giving effect to the addition of such Property in the calculations of the as an Unencumbered Property ValuesProperty; andand
(viviii) such other information as the Administrative Agent may reasonably request in order to evaluate the Property including, without limitation, the following:
(1) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering confirm that such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy;
(2) solely with respect to a property located in is an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent;
(3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property;
(4) copies of all Property Management Agreements relating to such Property; and
(5) evidence that the insurance required by Section 8.5. is in effect and, to the extent applicable, covers such Eligible Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” Property unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections required under this subsection (b)(i) through (vib), the Administrative Agent will send make such notice, reports and documents available to each of the Lenders. Within 10 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in subsections required under this subsection (b)(i) through (vib), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 1 contract
Additional Unencumbered Properties. If after the Effective Date, Date the Borrower desires that any additional Property become an Unencumbered Property and therefore included in calculations of the Unencumbered Property ValueProperty, the Borrower shall so notify the Administrative Agent in writing (as referred to in this subsection, a “Notice of Additional Unencumbered Property”). Except as otherwise provided in the immediately following subsection (c), no Property will shall become an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent all of the following, in form and substance reasonably satisfactory to the Administrative Agent (unless waived in writing by the Requisite Lenders):
(i) an executive summary of the Property including, at a minimum, the following information relating to such Property: (A) a description of such Property, such description to include the age, location location, site plan and size physical condition of such Property;; and (B) the purchase price paid or to be paid for such Property;
(ii) an operating statement with respect to for such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; providedrespects and prepared in accordance with GAAP for the previous three fiscal years, that with respect to any period provided that, if such Property was not owned by the Borrower or a Loan PartySubsidiary for less than three years, such information shall only be required to be delivered to the extent reasonably available to the Borrower and such certification may be based upon the Borrower;’s knowledge and provided further, that if such Property has been operating for less than three years, the Borrower shall provide such projections and other information concerning the anticipated operation of such Property as the Administrative Agent may reasonably request;
(iii) a pro forma operating statement or an operating budget for such Property with respect to the current and fiscal year and, if available, the immediately following fiscal years;year;
(iv) if such Property is located in a budget for capital expenditures for the immediately following 12-month period showing funding sources seismic zone rated 3 or higher, an all assets seismic portfolio report covering all applicable Properties prepared by a firm reasonably acceptable to the Administrative Agent; and;
(v) if such Property is leased under a ground lease, a copy of such ground lease;
(vi) a copy of the most current Xxxxx Travel Research STAR Report available for such Property;
(vii) a Compliance Certificate showing calculating (and evidencing pro forma compliance with with) the covenants set forth in Section 10.1., in each case, . after giving effect to the addition of such Property in the calculations of the as an Unencumbered Property ValuesProperty; andand
(viviii) such other information as the Administrative Agent may reasonably request in order to evaluate the Property including, without limitation, the following:
(1) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering confirm that such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy;
(2) solely with respect to a property located in is an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent;
(3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property;
(4) copies of all Property Management Agreements relating to such Property; and
(5) evidence that the insurance required by Section 8.5. is in effect and, to the extent applicable, covers such Eligible Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” Property unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections required under this subsection (b)(i) through (vib), the Administrative Agent will send make such notice, reports and documents available to each of the Lenders. Within 10 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in subsections required under this subsection (b)(i) through (vib), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 1 contract
Samples: Term Loan Agreement (Sunstone Hotel Investors, Inc.)
Additional Unencumbered Properties. If after the Effective Date, First Amendment Date the Borrower desires that any additional Property become an Unencumbered Property and therefore included in calculations of the Unencumbered Property ValueProperty, the Borrower shall so notify the Administrative Agent in writing (as referred to in this subsection, a “Notice of Additional Unencumbered Property”). Except as otherwise provided in the immediately following subsection (c), no Property will shall become an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent all of the following, in form and substance reasonably satisfactory to the Administrative Agent (unless waived in writing by the Requisite Lenders):):
(i) an executive summary of the Property including, at a minimum, the following information relating to such Property: (A) a description of such Property, such description to include the age, location location, site plan and size physical condition of such Property;; and (B) the purchase price paid or to be paid for such Property;
(ii) an operating statement with respect to for such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; providedrespects and prepared in accordance with GAAP for the previous three fiscal years, that with respect to any period provided that, if such Property was not owned by the Borrower or a Loan PartySubsidiary for less than three years, such information shall only be required to be delivered to the extent reasonably available to the Borrower and such certification may be based upon the Borrower;’s knowledge and provided further, that if such Property has been operating for less than three years, the Borrower shall provide such projections and other information concerning the anticipated operation of such Property as the Administrative Agent may reasonably request;
(iii) a pro forma operating statement or an operating budget for such Property with respect to the current and fiscal year and, if available, the immediately following fiscal years;year;
(iv) if such Property is located in a budget for capital expenditures for the immediately following 12-month period showing funding sources seismic zone rated 3 or higher, an all assets seismic portfolio report covering all applicable Properties prepared by a firm reasonably acceptable to the Administrative Agent; and;
(v) if such Property is leased under a ground lease, a copy of such ground lease;
(vi) a copy of the most current Xxxxx Travel Research STAR Report available for such Property;
(vii) a Compliance Certificate showing pro forma calculating (and, unless such Property is being added during the Covenant Relief Period, evidencing compliance with with) the covenants set forth in Section 10.1., in each case, . after giving effect to the addition of such Property in the calculations of the as an Unencumbered Property ValuesProperty; andand
(viviii) such other information as the Administrative Agent may reasonably request in order to evaluate the Property including, without limitation, the following:
(1) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering confirm that such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy;
(2) solely with respect to a property located in is an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent;
(3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property;
(4) copies of all Property Management Agreements relating to such Property; and
(5) evidence that the insurance required by Section 8.5. is in effect and, to the extent applicable, covers such Eligible Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” Property unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections required under this subsection (b)(i) through (vib), the Administrative Agent will send make such notice, reports and documents available to each of the Lenders. Within 10 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in subsections required under this subsection (b)(i) through (vib), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 1 contract
Additional Unencumbered Properties. (a) If after at any time the Effective Date, the Borrower desires that any additional Property become Company intends to include as an Unencumbered Eligible Property and therefore included in calculations any Proposed Real Estate, prior to any such inclusion the Company shall notify the holders of the Unencumbered Property Value, the Borrower shall so notify the Administrative Agent Notes in writing of its desire to include such Proposed Real Estate as an Unencumbered Eligible Property.
(as b) The notice referred to in this subsectionclause (a) above shall include (i) if such inclusion is to occur prior to the Investment Grade Release, a list of each Subsidiary that is (or upon the acquisition or leasing thereof or upon the acquisition of the owner or lessee thereof will be) the Direct Owner or an Indirect Owner thereof and (ii) if such inclusion is to occur on or after the Investment Grade Release, a list of each Subsidiary of the Company (if any) that is (or upon the acquisition or leasing thereof or upon the acquisition of the owner or lessee thereof will be) the Direct Owner or an Indirect Owner thereof and will at the time such Proposed Real Estate is to be included as an Unencumbered Eligible Property be a borrower or guarantor of, or otherwise obligated in respect of, any Recourse Indebtedness (each such Subsidiary under clause (i) or (ii) (including for the avoidance of doubt any Joint Venture Partner) being referred to hereinafter as a “Notice of Additional Proposed Unencumbered PropertyProperty Subsidiary”). Except as otherwise provided in the immediately following subsection ; and
(c)) With respect to each Proposed Unencumbered Property Subsidiary, no Property will become at least 10 days (or such shorter period as the Required Holders may agree) prior to the date the applicable Proposed Real Estate is to be included as an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent the following, in form and substance satisfactory to the Administrative Agent (unless waived by the Requisite Lenders):Company shall:
(i) a description of provide the holders with the U.S. taxpayer identification number for such PropertyProposed Unencumbered Property Subsidiary, such description to include the age, location and size of such Property;and
(ii) an operating statement provide the holders with respect to all documentation and other information concerning each such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; provided, that with respect to any period such Property was not owned by a Loan Party, such information shall only be required to be delivered to the extent reasonably available to the Borrower;
(iii) a pro forma operating statement or an operating budget for such Property with respect to the current and immediately following fiscal years;
(iv) a budget for capital expenditures for the immediately following 12-month period showing funding sources acceptable to the Administrative Agent; and
(v) a Compliance Certificate showing pro forma compliance with the covenants set forth in Section 10.1., in each case, after giving effect to the addition of such Property in the calculations of the Proposed Unencumbered Property Values; and
(vi) such other information the Administrative Agent Subsidiary that any holder may reasonably request in order to evaluate comply with their obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(d) At or prior to the time that any Proposed Real Estate that has a Proposed Unencumbered Property including, without limitationSubsidiary as its Direct Owner or Indirect Owner is included as an Unencumbered Eligible Property, the following:
(1Company shall have caused each such Proposed Unencumbered Property Subsidiary to comply with Section 9.7(a) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy;
(2) solely with respect to a property located in an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent;
(3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property;
(4) copies of all Property Management Agreements relating to such Property; and
(5) evidence that the insurance required by Section 8.5. is in effect and, hereof to the extent applicable, covers such Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections (b)(i) through (vi), the Administrative Agent will send such notice, reports and documents to each of the Lenders. Within 10 Business Days of the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and other reports and documents set forth in subsections (b)(i) through (vi), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 1 contract
Samples: Note Purchase Agreement (Empire State Realty OP, L.P.)
Additional Unencumbered Properties. If after the Effective Date, First Amendment Date the Borrower desires that any additional Property become an Unencumbered Property and therefore included in calculations of the Unencumbered Property ValueProperty, the Borrower shall so notify the Administrative Agent in writing (as referred to in this subsection, a “Notice of Additional Unencumbered Property”). Except as otherwise provided in the immediately following subsection (c), no Property will shall become an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent all of the following, in form and substance reasonably satisfactory to the Administrative Agent (unless waived in writing by the Requisite Lenders):
(i) an executive summary of the Property including, at a minimum, the following information relating to such Property: (A) a description of such Property, such description to include the age, location location, site plan and size physical condition of such Property;; and (B) the purchase price paid or to be paid for such Property;
(ii) an operating statement with respect to for such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; providedrespects and prepared in accordance with GAAP for the previous three fiscal years, that with respect to any period provided that, if such Property was not owned by the Borrower or a Loan PartySubsidiary for less than three years, such information shall only be required to be delivered to the extent reasonably available to the Borrower and such certification may be based upon the Borrower;’s knowledge and provided further, that if such Property has been operating for less than three years, the Borrower shall provide such projections and other information concerning the anticipated operation of such Property as the Administrative Agent may reasonably request;
(iii) a pro forma operating statement or an operating budget for such Property with respect to the current and fiscal year and, if available, the immediately following fiscal years;year;
(iv) if such Property is located in a budget for capital expenditures for the immediately following 12-month period showing funding sources seismic zone rated 3 or higher, an all assets seismic portfolio report covering all applicable Properties prepared by a firm reasonably acceptable to the Administrative Agent; and;
(v) if such Property is leased under a ground lease, a copy of such ground lease;
(vi) a copy of the most current Xxxxx Travel Research STAR Report available for such Property;
(vii) a Compliance Certificate showing pro forma calculating (and, unless such Property is being added during the Covenant Relief Period, evidencing compliance with with) the covenants set forth in Section 10.1., in each case, . after giving effect to the addition of such Property in the calculations of the as an Unencumbered Property ValuesProperty; andand
(viviii) such other information as the Administrative Agent may reasonably request in order to evaluate the Property including, without limitation, the following:
(1) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering confirm that such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy;
(2) solely with respect to a property located in is an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent;
(3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property;
(4) copies of all Property Management Agreements relating to such Property; and
(5) evidence that the insurance required by Section 8.5. is in effect and, to the extent applicable, covers such Eligible Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” Property unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections required under this subsection (b)(i) through (vib), the Administrative Agent will send make such notice, reports and documents available to each of the Lenders. Within 10 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in subsections required under this subsection (b)(i) through (vib), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 1 contract
Additional Unencumbered Properties. If after the Effective Date, EffectiveFirst Amendment Date the Borrower desires that any additional Property become an Unencumbered Property and therefore included in calculations of the Unencumbered Property ValueProperty, the Borrower shall so notify the Administrative Agent in writing (as referred to in this subsection, a “Notice of Additional Unencumbered Property”). Except as otherwise provided in the immediately following subsection (c), no Property will shall become an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent all of the following, in form and substance reasonably satisfactory to the Administrative Agent (unless waived in writing by the Requisite Lenders):
(i) an executive summary of the Property including, at a minimum, the following information relating to such Property: (A) a description of such Property, such description to include the age, location location, site plan and size physical condition of such Property;; and (B) the purchase price paid or to be paid for such Property;
(ii) an operating statement with respect to for such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; providedrespects and prepared in accordance with GAAP for the previous three fiscal years, that with respect to any period provided that, if such Property was not owned by the Borrower or a Loan PartySubsidiary for less than three years, such information shall only be required to be delivered to the extent reasonably available to the Borrower and such certification may be based upon the Borrower;’s knowledge and provided further, that if such Property has been operating for less than three years, the Borrower shall provide such projections and other information concerning the anticipated operation of such Property as the Administrative Agent may reasonably request;
(iii) a pro forma operating statement or an operating budget for such Property with respect to the current and fiscal year and, if available, the immediately following fiscal years;year;
(iv) if such Property is located in a budget for capital expenditures for the immediately following 12-month period showing funding sources seismic zone rated 3 or higher, an all assets seismic portfolio report covering all applicable Properties prepared by a firm reasonably acceptable to the Administrative Agent; and;
(v) if such Property is leased under a ground lease, a copy of such ground lease;
(vi) a copy of the most current Xxxxx Travel Research STAR Report available for such Property;
(vii) a Compliance Certificate showing pro forma formacalculating (and, unless such Property is being added during the Covenant Relief Period, evidencing compliance with with) the covenants set forth in Section 10.1., in each case, . after giving effect to the addition of such Property in the calculations of the as an Unencumbered Property ValuesProperty; andand
(viviii) such other information as the Administrative Agent may reasonably request in order to evaluate the Property including, without limitation, the following:
(1) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering confirm that such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy;
(2) solely with respect to a property located in is an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent;
(3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property;
(4) copies of all Property Management Agreements relating to such Property; and
(5) evidence that the insurance required by Section 8.5. is in effect and, to the extent applicable, covers such Eligible Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” Property unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections required under this subsection (b)(i) through (vib), the Administrative Agent will send make such notice, reports and documents available to each of the Lenders. Within 10 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in subsections required under this subsection (b)(i) through (vib), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 1 contract
Additional Unencumbered Properties. If after the Effective Date, First Amendment Date the Borrower desires that any additional Property become an Unencumbered Property and therefore included in calculations of the Unencumbered Property ValueProperty, the Borrower shall so notify the Administrative Agent in writing (as referred to in this subsection, a “Notice of Additional Unencumbered Property”). Except as otherwise provided in the immediately following subsection (c), no Property will shall become an Unencumbered Property unless it is an Eligible Property, and unless and until the Borrower delivers to the Administrative Agent all of the following, in form and substance reasonably satisfactory to the Administrative Agent (unless waived in writing by the Requisite Lenders):
(i) an executive summary of the Property including, at a minimum, the following information relating to such Property: (A) a description of such Property, such description to include the age, location location, site plan and size physical condition of such Property; and (B) the purchase price paid or to be paid for such Property;
(ii) an operating statement with respect to for such Property for each of the two prior fiscal years and for the current fiscal year through the fiscal quarter most recently ending and for the current fiscal quarter, which shall be audited (to the extent available) or certified by a representative of the Borrower to the best of such representative’s knowledge as being true and correct in all material respects; providedrespects and prepared in accordance with GAAP for the previous three fiscal years, that with respect to any period provided that, if such Property was not owned by the Borrower or a Loan PartySubsidiary for less than three years, such information shall only be required to be delivered to the extent reasonably available to the Borrower and such certification may be based upon the Borrower’s knowledge and provided further, that if such Property has been operating for less than three years, the Borrower shall provide such projections and other information concerning the anticipated operation of such Property as the Administrative Agent may reasonably request;
(iii) a pro forma operating statement or an operating budget for such Property with respect to the current and fiscal year and, if available, the immediately following fiscal yearsyear;
(iv) if such Property is located in a budget for capital expenditures for the immediately following 12-month period showing funding sources seismic zone rated 3 or higher, an all assets seismic portfolio report covering all applicable Properties prepared by a firm reasonably acceptable to the Administrative Agent; and;
(v) if such Property is leased under a ground lease, a copy of such ground lease;
(vi) a copy of the most current Sxxxx Travel Research STAR Report available for such Property;
(vii) a Compliance Certificate showing pro forma calculating (and, unless such Property is being added during the Covenant Relief Period, evidencing compliance with with) the covenants set forth in Section 10.1., in each case, . after giving effect to the addition of such Property in the calculations of the as an Unencumbered Property ValuesProperty; and
(viviii) such other information as the Administrative Agent may reasonably request in order to evaluate the Property including, without limitation, the following:
(1) a copy of the ALTA Owner’s Policy of Title Insurance (“Owner’s Policy”) of the Borrower or a Subsidiary, as applicable, covering confirm that such Property showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy;
(2) solely with respect to a property located in is an earthquake zone, an engineering report or structural inspection report for such Property that is (w) prepared by an engineering firm reasonably acceptable to the Administrative Agent, (x) if requested by the Administrative Agent, addressed to the Administrative Agent, (y) not more than 12 months old and (z) otherwise in form and substance acceptable to the Administrative Agent;
(3) (x) a “Phase I” environmental assessment of such Property, which report has been (A) prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, (B) if requested by the Administrative Agent, addressed to the Administrative Agent and (C) is otherwise in form and substance acceptable to the Administrative Agent and (y) any other environmental assessments or other reports relating to such Property, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property;
(4) copies of all Property Management Agreements relating to such Property; and
(5) evidence that the insurance required by Section 8.5. is in effect and, to the extent applicable, covers such Eligible Property. A Notice of Additional Unencumbered Property executed and delivered by the Borrower to the Administrative Agent shall constitute a certification by the Borrower to the Administrative Agent and the Lenders that such Property satisfies all of the requirements contained in the definition of “Eligible Property” Property unless such notice states otherwise (in which case the provisions of the immediately following subsection (c) shall apply). Within 5 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in the immediately preceding subsections required under this subsection (b)(i) through (vib), the Administrative Agent will send make such notice, reports and documents available to each of the Lenders. Within 10 Business Days of after the Administrative Agent’s receipt of a Notice of Additional Unencumbered Property and the other reports and documents set forth in subsections required under this subsection (b)(i) through (vib), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”. Notwithstanding the foregoing, if a Notice of Additional Unencumbered Property is delivered in connection with the submission of a Property as a result of Section 2.5.(b)(ii) and within 10 Business Days of the providing of such notice the Borrower has delivered all reports and documents required under the immediately preceding subsections (b)(i), (ii), (iii), (iv), (v) and (vi)(1) through (4), the Administrative Agent shall notify the Borrower and the Lenders if the Administrative Agent has confirmed that such Property satisfies all of the requirements contained in the definition of “Eligible Property”.
Appears in 1 contract
